Employee was wrongfully dismissed, but doesn’t get job back

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In an unusual twist on a wrongful dismissal case, an arbitrator has found that there was not just cause for dismissal – but has not re-instated the terminated worker.

In 2010 Peterborough Regional Health Centre dismissed registered nurse Maureen Smithers after suspending her for bullying behaviour towards newly appointed registered practicing nurses. She claimed she was surprised, because no one had told her there were concerns about her behaviour.

The arbitrator found that while Smithers did engage in bullying and intimidating behaviour, the health centre was not justified in terminating her. He chose not to have the grievor reinstated and assigned additional damages instead.

It was unusual for an arbitrator to choose not to reinstate someone after finding they were wrongfully dismissed, Filion Wakely Thorup Angeletti employment lawyer Roslyn McGilvery said. The arbitrator, who had visited the centre, explained his decision by emphasising the importance of teamwork for the role.

The employer may have seen a better outcome if they had progressively disciplined Smithers, and had known what was happening earlier rather than waiting until someone made a complaint. “Managers and supervisors should be aware to look out for this type of behaviour and take action even if the employee being subjected to this behaviour doesn’t complain about it,” McGilvery said. “Once the behaviour is identified you can take action. The standard would be to progressively discipline.”

One of the main issues the arbitrator had with how the employer dealt with the case was that Smithers had not been told that there were any problems with her behaviour until she was suspended.

The company had a workplace bullying policy, which is good practice, but McGilvery said employers need to ensure employees are aware of the policies and expectations, and that they know what their options are if they experience bullying or intimidation.

“If her behaviour had been reported or noted earlier and something had been done about it then the employer might have been in a position to have the dismissal upheld,” McGilvery added.

The damages will be worked out between the parties, rather than decided by the arbitrator.






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